The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-02-15

The bill alleges that on Nov. 18th,
1S16. the defendants executed, acknov
lodged and delivered to the plaintiff
z mortgage on certain premises to
secure the payment of S3S7.99 which
with interest Is in default and due;
that concurrently with the mortgage
the defendants made and delivered
promissory note. which the plaintiff
has lost: that consideration of the note
and mortgage was bill of lumber pur
chased Of the plaintiff by defendant
W. G. Roland. and alleges that this
0fumber was used TO build a residence
upon the premises IN question in
which the defendants have dwelt
since and till now; that the defend
ants have recently made leases of por-
tons Of these premises, of which rents
are about to become due
The PRAYER Is for foreclosure of the
mortgage, and, pending proceedings,
: an Injunction from collecting the rent.
The answer admits the execution of
the mortgage and the non-payment
OF the sum intended to be secured by
st, but alleges that large sums have
ACCOUNT between the parties, and
claims that as far as they are iDdivi-
dualy concerned the amount secured
bv the mortgage has been barred by
Sc statute Of limitations. That the
Indebtedness was the individual debt
OF ". @. Roland for which the sepa-
rate estate OF Helen Roland is not
Eable-and further says that the land
referred 10 in the mortgage was con-
veyed II 1865. by Frank Metcalf and
JdIia Prosser to VIM. q. Roland.
defendant upon express trust to hold
for the benefit Of the said Helen
Roland for her sole separate and only
use and benefit free from the debts
engagements and liabilities of her
then or any future husband and that
she was therein restrained from the
power Of alienation and anticipation
Of the income from said premises.
Helen Roland says that she does
not remember TO have signed a pro
missory note coneurently with the
mortgage and W. g. Roland neither
aSS1its nor denies having signed
mole and says he does not remember
giving a note.
The defendants admit that the
foundation of the debt was the sale
Of lumber to w. G. Roland and allege
that il was for his individual debt
They deny that the lumber was used
to build a house but say it was used
TO repair and enlarge a house then on
the premises and occupied by them.
The respondent w g. Roland,
tTAther SAYS that the existence of said
trust and of the restraints upon alien
alton and anticipation was known to
the complainant but he urged him to
raise money by a mortgage, and pro
Cured this instrument to be drawn
which he might assign and raise
mopey on, and that so the respondents
exSluted it IN consequence of repeated
solicitations and merely for complain
ants accommodation.
The instrument which is the found
alton Of this suit Is a conveyance from
Frank Metcalf and Julia Prosser in
consideration Of love and affection to
their sister Helen Roland and of one
dollar to each Of the grantOrs paid by
William g. Roland. to him his heirs
and assigns to hold in trust to the use
Of Helen Roland for her life, for her
sole exclusive separate and only use
and benefit free from the debts
engagements and liabilities of her
present or any future husband, and
after her decease in trust for all
to children Of this marriage their
heirs &c, or failing issue surviving,
then absolutely to the trustee, he
surviving.
And it is hereby declared and
agreed that the said Helen Roland
shall not have power to sell, mortgage
or IN any way charge or incumber the
premises, nor shall she have any power
TO anticipate the growing rents"
Should the trustee die, refuse to
act. or depart from the Kingdom and
remain absent for a year, the grantors
or either of them may appoint another
trustee IN his place. This deed and
agreement the four parties sign and
acknowledge.
BIZ TIE CoURF The question to be
conAdered is whether the Court will
sustain restraint on alienation and
anticipation of the life estate of
married woman vested in her trustee.
Such restraint Is imposed in the
elesrest terms in the deed before us.
1t has TO be conceded by Counsel for
the petitioner that the authorities all
support the proposition. See
Cahill vs. Cahill. L. r. s app. Gus.
Pix vs.. Fitzgibbon, L. R. IL Oh.
Do. 454
Stanley vs.. Stanley, L. r. Z Oh.
DIV. SO.
Bramon vs.. Stiles, , Pick. 400.
Broadway Blk. vs.. Adams, 133 Mass.
1908
Tie latter case holds this in case of
4 a devise to brother.
See also Perry on Trusts 2 S 81
with citations.
L - H..